Citation Nr: 0812532 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 03-21 362 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for a bilateral eye disability claimed as a result of VA treatment in October 1993. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The veteran had active service from March 1951 to March 1954. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, that denied entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for a bilateral eye disability claimed as a result of VA treatment in October 1993. The veteran testified at a personal hearing before a Decision Review Officer (DRO) at the RO in November 2006. A transcript of his testimony is associated with the claims file. This case was remanded to the RO by the Board in January 2005, July 2006 and July 2007 for additional development and adjudicative action. FINDINGS OF FACT 1. The veteran was prescribed eye drops by a medical professional at a VA facility in October 1993, but the pharmacy inadvertently filled the prescription with ear drops; the veteran instilled one ear drop in each eye which caused immediate discomfort and redness, but no permanent damage. 2. The veteran's current cataracts and decrease in visual acuity are not related to the one-time use of ear drops in the eyes in October 1993, and no permanent additional disability resulted from the one-time use of the incorrectly prescribed ear drops in each eye. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C.A. § 1151 for a bilateral eye disability claimed as a result of VA treatment in October 1993 have not been met. 38 U.S.C.A. §§ 1151, 7104 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.361 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letter dated in April 2002. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The notification did not substantially comply with the requirements of Pelegrini v. Principi, 18 Vet. App. 112 (2004), because the veteran was not specifically requested to provide evidence in his possession that pertains to the claim. The RO subsequently corrected that defect by sending an additional duty to assist letter to the veteran in February 2005, followed by another adjudication of the claim in a July 2005 supplemental statement of the case. The initial pre-adjudication notice did not advise the veteran of the laws regarding degrees of disability or effective dates for any grant of service connection; however, no new disability rating or effective date for award of benefits will be assigned as the claim for compensation under 38 U.S.C.A. § 1151 is denied. Accordingly, any defect with respect to that aspect of the notice requirement is rendered moot. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Moreover, the notices provided to the veteran over the course of the appeal provided all information necessary for a reasonable person to understand what evidence and/or information was necessary to substantiate his claim. The veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Sanders v. Nicholson, 487 F. 3d 881 (Fed. Cir. 2007). VA has obtained service medical records, assisted the veteran in obtaining evidence, afforded the veteran physical examinations, obtained medical opinions as to the etiology and severity of the claimed disability, and afforded the veteran the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the veteran's claims file; and the veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. II. 38 U.S.C.A. § 1151 The veteran asserts that he had a current bilateral eye disability as a result of negligent treatment by a VA facility. A veteran may be awarded compensation for additional disability, not the result of his willful misconduct, if the disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by VA, and the proximate cause of the disability was (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (2) an event not reasonably foreseeable. 38 U.S.C.A. § 1151. To determine whether additional disability exists within the meaning of § 1151, the veteran's condition immediately prior to the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based is compared to his or her condition after such care, treatment, examination, services, or program has been completed. Each body part or system involved is considered separately. 38 C.F.R. § 3.361(b). To establish causation, evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability or death. Merely showing that a veteran received care, treatment, or examination, and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c) (1). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). Additional disability or death caused by a veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(3). The proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability or death (see 38 C.F.R. § 3.361(c)) and (i) that VA failed to exercise the degree of care that would be expected of a reasonable health care provider or (ii) that VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's, informed consent. 38 C.F.R. § 3.361(d)(1). This case has been remanded three times in an attempt to obtain an adequate medical opinion addressing whether the veteran's current findings of chronic allergic conjunctivitis and/or senile cataracts, and/or any other eye condition are related to an October 1993 incident where the veteran was mistakenly prescribed ear drops for his eyes. As noted below, the preponderance of the evidence in this case, including the medical opinions obtained in July 2002, February 2005, October 2006, and August 2007 weighs against the veteran's claim. Historically, VA records from October 7, 1993 reveal that the veteran was seen three times that same day. At the first appointment, at 9:00 AM, the veteran was seen for complaints of redness, pain, and secretions of the right eye of about a one-week duration. Additionally, the veteran presented with upper respiratory infection (URI). The assessment was upper respiratory throat infection with right eye conjunctivitis. At 2:35, the veteran returned and reported increased redness of both eyes after administration of drops, but according to the nurse notes, he apparently left at 2:45, without being seen by the physician. At 3:50 PM, the veteran returned and explained that he was treated earlier that day for a URI and conjunctivitis. The veteran further explained that he received a prescription for Neosporin eye drops from the pharmacy, but the pharmacy inadvertently prescribed an otic medication. The veteran put one drop in each eye, after which he experienced eye redness and discomfort. He denied any blurred vision. The assessment was bilateral conjunctivitis exacerbated allergic response due to irritation from otic drops. A separate October 1993 VA medical record also notes that the veteran was prescribed Neosporin, and when he instilled a wrongly prescribed otic solution into his eyes, he noticed severe irritation. Additional records from the same day indicate that the veteran changed the otic drops at the pharmacy for the ophthalmic Neosporin solution. He was prescribed additional medication and also irrigation and referred for a consult to optometry in the next 72 hours. The veteran was subsequently seen at a VA facility on October 13, 1993 with 20/20 visual acuity with punctuate keratitis. Corresponding eye drops were prescribed and the veteran was referred for re-evaluation on October 27, 1993. Evaluation on October 27, 1993 shows that the keratitis was completely healed. The veteran was found to have dry eye syndrome and Celluvisc was prescribed. The veteran was treated again on November 8, 1993 and the keratitis was completely healed. In February 1998 the veteran complained of blurred vision far and near. The assessment was hyperopia and presbyopia. In October 1999, the veteran presented with complaints of visual disturbance and headaches. There were no findings or diagnoses related to cornea or conjunctivae. An April 2002 addendum by a VA optometrist indicated that it was possible that the veteran's history of chronic conjunctivitis was due to otic medication used in the eyes a few years ago. A July 2002 VA examination report revealed that the veteran had visual loss due to bilateral senile cataracts. There was no further evidence of chronic conjunctivitis or keratopathy with dry eye syndrome associated with tear deficiency. The examiner pointed out that the veteran's vision was good in 1999 (20/25 OU). In September 2003, the veteran was seen at the VA eye clinic due to conjunctivitis that he had developed 3 days earlier. His wife also had conjunctivitis. Treatment was prescribed and improvement was noted in a follow-up appointment of October 9, 2003. The diagnosis was allergic/nonspecific conjunctivitis, improved. A diagnosis of conjunctivitis was also noted in VA records from January 2004 and August 2004, along with dry eye (keratoconjunctivitis sicca). At a February 2005 VA examination, the veteran continued to complain of a burning sensation and dryness, that he believed was related to the 1993 otic Neosporin event. After examining the veteran's eyes, the examiner's diagnoses included: refractive error; dermatochalasis; posterior blepharitis; mild-moderate dry eyes; atrophic nasal pterygium, right eye; and bilateral senile cataracts; floaters. The examiner indicated that the loss of vision in both eyes was caused by or a result of senile cataracts and refractive error. The veteran's symptoms were caused by the posterior blepharitis and dry eyes. The examiner opined that the dry eyes were not caused, nor did they result, from the instillation of Neosporin otic for one day, fifteen years ago. At his personal hearing at the RO in November 2006, the veteran continued to insist that his current eye problems were related to the otic drop incident of October 1993. A VA examination report from August 2007 shows that the examiner extensively reviewed the veteran's claims file and summarized all of the aforementioned medical evidence of record as part of the examination report. The examiner explained that the veteran's bilateral senile cataracts, referred to in the July 2002 VA examination report, was entirely age-related. The examiner provided the following opinion: It is quite clear, deriving from this revision, that the evidence does not support the claim for any permanent damage and/or consequences in this veteran's eye or visual acuity from having instilled one drop in each eye, one time only, of an otic, instead of an ophthalmic solution that was incorrectly dispensed by VA pharmacy, not incorrectly prescribed by physician, mistake that appears to have been corrected that same day, and veteran given treatment that cleared completely his initial symptoms. It is medically unfeasible that a condition acutely developed 10 years later, in 2003, had any relationship to that incident with no visible symptoms or manifestations during those previous ten years. The only evidence weighing in favor of the veteran's claim is a medical opinion from April 2002 and the veteran's own belief that his current eye condition is related to the 1993 otic drop incident, and/or that he has permanent chronic disability that was caused by the mix-up in October 1993. The April 2002 VA medical record shows a diagnosis of allergic conjunctivitis. The examiner noted that there was a possible history of chronic conjunctivitis due to otic medication used in the eyes a few years ago. This opinion is not probative as no rationale whatsoever was provided to support that opinion, and the examiner opined only that the possibility of a relationship existed, not that there was at least a 50 percent or more likelihood of a relationship between the ear drops instilled in the eyes and chronic conjunctivitis. Similarly, the veteran's own statements regarding additional disability associated with the use of the otic drops are also of no probative value. Although the veteran is competent to testify as to his experiences and symptoms, such as having redness and irritation immediately after the October 1993 otic drop incident, where the determinative issue involves a question of medical diagnosis or causation, only individuals possessing specialized medical training and knowledge are competent to render such an opinion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The evidence does not reflect that the veteran currently possesses a recognized degree of medical knowledge that would render his opinions on medical diagnoses or causation competent. See Washington v. Nicholson, 19 Vet App 362 (2005), citing Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (holding that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witness' personal knowledge). In this case, the veteran is not competent to provide an opinion as to whether he incurred permanent additional disability as a result of the use of otic drops in his eyes, nor is he competent to conclude that his current eye disabilities are related to the otic drop incident in October 1993. Moreover, the veteran's lay evidence is heavily outweighed by VA medical opinions in July 2002, February 2005, October 2006, and August 2007, all of which determined that there was no relationship between the veteran's visual acuity and/or conjunctivitis, and his one-time use of otic drops in his eyes in October 1993. The VA examiners' determinations and opinions were based on a complete record (at the time they were provided) and outweigh the July 2002 opinion and the veteran's own unsupported testimony. See Owens v. Brown, 7 Vet. App. 429 (1995) (the Board is free to favor one medical opinion over another provided it offers an adequate basis for doing so). The medical evidence demonstrates that the veteran has various eye disabilities; however, the competent evidence of record does not support the veteran's assertions that he has additional eye disability due to improper care, negligence or an event not foreseeable as a consequence of VA treatment. Rather, the medical evidence demonstrates that the veteran has current eye conditions unrelated to the 1993 incident, including bilateral senile cataracts, dry eye syndrome, and occasional conjunctivitis. There is no question that the VA pharmacy dispensed the wrong medication to the veteran, and the veteran's one-time use of such medication caused temporary eye redness and irritation; however, the evidence does not show that this mistake caused permanent damage to the eyes resulting in any additional disability for which compensation pursuant to 38 U.S.C.A. § 1151 would be warranted. The preponderance of the evidence is against the claim for compensation pursuant to 38 U.S.C.A. § 1151; there is no doubt to be resolved; and compensation under 38 U.S.C.A. § 1151 for additional eye disability due to VA treatment in October 1993 is not warranted. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3. ORDER Compensation pursuant to the provisions of 38 U.S.C.A. § 1151 (West 2002 & Supp. 2007) for additional eye disability due to VA treatment in October 1993 is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs